October 2009

October 29, 2009

The Senate Judiciary Committee today gave its blessing to Barbara Keenan, nominated for a vacancy on the U.S. Court of Appeals for the 4th Circuit.

Keenan, a justice on the Virginia Supreme Court, is President Barack Obama's second nominee for the Richmond-based appeals court. The other nominee, Judge Andre Davis of the U.S. District Court for the District of Maryland, has been waiting for a vote in the full Senate since June 4.

Five of the 15 seats on the 4th Circuit are vacant, giving Obama the chance to remake a court that has historically been among the most conservative in the nation.

Keenan faced no opposition today, and Sen. Jeff Sessions (R-Ala.), the committee’s top Republican, called her a “fine nominee.” She has been a judge at every level of Virginia’s state court system. She became the first woman elected to a judgeship in Virginia when she won a district court seat in Fairfax County in 1980.

The committee also backed two nominees for U.S. attorney positions: Carmen Milagros Ortiz for the District of Massachusetts and Edward Tarver for the Southern District of Georgia. Neither faced opposition.

The management of Washington-based Hogan & Hartson and London-based Lovells have unanimously recommended proceeding with a merger, according to a statement released early Thursday. The AmLaw Daily has more here on what's next in the merger process.

By the Book: The F.B.I.'s release of its "Domestic Investigations and Operations Guide" in response to a Freedom of Information lawsuit has alarmed privacy advocates who say the bureau has been given too much power since the attacks of Sept. 11 to hunt for would-be terrorists inside the United States, The New York Times reports.

Should the Fed Be Reserved? The latest financial-regulation legislation working its way through Congress would broaden the Federal Reserve's oversight powers, including the authority to force large firms to shrink if their size threatens the broader economy. The Wall Street Journal reports that the expansion of the Fed's role is sure to become a flash point in the debate over the overhaul of financial regulations.

Sentenced to Life:The Washington Post explores two cases before the Supreme Court this term that call into question the constitutionality of handing down life sentences to juveniles for crimes that did not involve death. Among the wide range of issues the justices may consider are whether the appropriate age for life sentences should be raised or whether to differentiate the non-homicides in both cases with crimes in which someone is killed.

Out to Lunch: A South Carolina deputy assistant attorney general has been fired after an officer found him parked in his SUV in a secluded cemetery with an 18-year-old stripper and sex toys, The Associated Press reports. Roland Corning, who told the officer he was on his lunch break, and the unnamed stripper were let go without charges. But after receiving word of the stop, South Carolina Attorney General Henry McMaster let Corning go. Such a trip to the cemetery "would not be appropriate, at any time, for an assistant attorney general," McMaster said.

October 28, 2009

The trial of a 39-year-old convicted felon accused of stalking a D.C. Superior Court magistrate judge has been delayed until Monday after the defendant spent the morning in the hospital with an undisclosed medical emergency. But presiding Superior Court Judge Russell Canan ordered that Taylar Nuevelle be stripped of her passport, deeming her a flight risk.

Nuevelle, accused of stalking Magistrate Judge Janet Albert—with whom she had a yearlong relationship—and breaking into her house, arrived at a 4 p.m. hearing today. Opening arguments were delayed pending a medical evaluation amid concerns that Nuevelle’s emergency was simply a ploy to delay the trial. Nuevelle failed to show up to what was supposed to be the start of the trial this morning because she had checked herself into Georgetown University Hospital’s emergency room. She was still wearing a hospital admission bracelet and a small white bandage on her hand when she came to court this afternoon.

Nuevelle is fit to stand trial starting tomorrow, according to a medical evaluation written by a hospital doctor. “The recommendation is that she should follow up with a physician in two to three days if symptoms persist or worsen,” Canan said. But a separate note was submitted on behalf of Nuevelle’s primary care physician, Robin Davis, who advised that tests may not uncover certain characteristics of the condition Nuevelle suffers and more tests should be administered. Canan ruled that the trial be stayed until Monday, Nov. 2, to ensure Nuevelle is healthy. A hearing will be held Friday to make sure Nuevelle will be ready. Davis could not be reached for comment.

In lieu of revelations about Nuevelle’s criminal history, Assistant U.S. Attorney Stephanie Brenowitz moved that Nuevelle be placed in high-intensity supervision with a curfew and GPS monitoring plus turn over her passport. In 1999 Nuevelle absconded to England for three years with her child in the midst of custody hearings with her ex husband. “If that’s in fact true, I am concerned about flight in this case,” Canan said. Canan ordered Nuevelle to turn in her passport by 9 a.m. tomorrow but denied the other supervisory measures.

The government's chief witness in the prosecution of Ted Stevens was sentenced in federal court in Alaska today to three years in prison and ordered to pay a $750,000 fine.

The witness, Bill Allen, 72, pleaded guilty in May 2007 to charges that included bribery and extortion for his role in a corruption scheme that entangled several public officials in Alaska. Allen was the former owner of the oil services company called VECO.

Judge John Sedwick of the U.S. District Court for the District of Alaska presided over sentencing. A former vice president VECO, Richard Smith, 64, was sentenced today to 21 months in prison and three years of supervised release. Sedwick orderd Allen to also serve three years of supervised release.

Justice Department prosecutors say Allen and Smith conspired with at least five members of the Alaska legislature to provide benefits to elected officials in exchange for support on legislation. Allen and Smith admitted they paid nearly $400,000 to the benefit of public officials.

Allen’s lawyers, including White & Case partner George Terwilliger III, said in court papers that Allen’s cooperation in the investigation should warrant a considerable reduction in a prison sentence. Terwilliger said Allen should serve no more than six months behind bars.

The trial of a 39-year-old convicted felon accused of stalking a D.C. Superior Court magistrate judge took an odd turn this morning as opening arguments were delayed for at least one day because the defendant had checked herself into the emergency room.

Taylar Nuevelle is accused of stalking Magistrate Judge Janet Albert, with whom she had a yearlong relationship, and breaking into her house. Albert found her former girlfriend unconscious Albert's attic on Sep. 13, according to police reports. (In May Nuevelle pleaded not guilty). For yesterday's coverage click here.

As the trial was set to begin at 10:30 a.m., Nuevelle’s lawyer, D.C. solo practitioner A. Kevin Fahey, announced to the court that the defendant was waiting to be admitted into Georgetown University Hospital’s emergency room. Fahey declined to publicly say what Nuevelle’s medical problem was, but Assistant U.S. Attorney Stephanie Brenowitz later mentioned in court that it had to do with her legs. Fahey asked that the trial be delayed until tomorrow.

But Brenowitz expressed skepticism that the condition was legitimate or that Nuevelle was indeed at the hospital at all because she said Nuvelle has a criminal history of delaying trials with bogus medical claims. In 1999, Nuevelle absconded to England with her child for three years after feigning illness to excuse herself from a D.C. Superior Court courtroom in the middle of a custody hearing and then fleeing, Brenowitz told the court. The incident resulted in a 2003 felony conviction of lying to obtain a passport. A current landlord-tenant trial involving Nuevelle has been delayed for medical reasons too and Brenowitz said the victim in that case claims Nuevelle has used similar medical claims to “get out of doing things, like vacating the house.” “The government has some serious concerns about this pattern of behavior, the failure to be present,” Brenowitz continued. “I’m reluctant to give the impression that one can check oneself into an emergency room and the entire trial can wait for a day.”

Fahey assured the court that the condition was real, however, saying that he has even driven his client to the hospital for similar reasons in the past. “Based on my personal experience, I don’t think this is any kind of feigned illness,” he said. “It’s been an ongoing situation. She didn’t just make it up.”

Before deciding to delay the trial for a day, Superior Court Judge Russell Canan wanted to make sure the situation wasn’t a hoax. “She didn’t seem in any distress yesterday (at jury selection),” he said. “But I don’t know, it certainly could be that she has a legitimate medical concern.” The judge sent pretrial services representatives and Brenowitz sent a detective to the hospital while Fahey called his client to confirm the visit. Canan temporarily excused the jury, telling them that there was an administrative matter that needed to be settled, and pushed the trial back one hour while he waited for the investigation.

As the trial resumed around noon, Nuevelle was still absent and all parties agreed that according to their inquiries, she was indeed in the hospital. Fahey said she was awaiting the results of medical tests that could take a few hours. As a result, Judge Canan ruled without objection that the trial be delayed until at least tomorrow and perhaps longer pending a 4 p.m. update on Nuevelle’s diagnosis. Despite Fahey’s objections over privacy concerns, Canan also ruled that Nuevelle’s medical records for today be released to Brenowitz for review.

But there was still the pressing matter of what to tell the waiting jury, Canan said. “I don’t want it to be a situation where her absence either hurts her (or) prejudices her case,” he said. “I don’t want to be in a situation where the jury is frustrated because their time’s been wasted.” He decided to excuse the lawyers and called the jury in to tell them simply “one of the essential persons in this case has become unavailable” because “trials are a human endeavor and unfortunately, things happen that are unexpected.”

Bill Allen, the government's chief witness in the prosecution of former Sen. Ted Stevens, is scheduled to be sentenced today in federal district court in Alaska, where a judge will have to weigh Allen's extensive cooperation against the seriousness of his crimes.

Justice Department prosecutors want Allen, former owner of the oil services company VECO, to serve 46 months in prison for his role as a leader in criminal activity that involved a number of public officials in Alaska. Allen pleaded guilty in May 2007 to charges that included bribery and conspiracy to commit extortion. He is scheduled to be sentenced today in the U.S. District Court for the District of Alaska.

“Despite his limitations, Mr. Allen provided extensive, truthful, and timely cooperation that has provided the government with relevant information in over a dozen criminal investigations,” a lawyer for Allen, White & Case partner George Terwilliger III, said in court papers filed this month in Alaska. From August 2006 until April 2009, Allen submitted to at least 70 debriefings with federal agents, according to court records.

In court papers filed Oct. 21, Terwilliger said punishment that includes a $150,000 fine and a 12-month sentence—six months in prison and the rest in home detention—is appropriate.

A federal judge this week tossed out a lawsuit filed against the District of Columbia in which a group of child care workers said they were wrongly fired when the city wanted to privatize their jobs.

In an opinion issued Monday night, Senior Judge Thomas Hogan of the U.S. District Court for the District of Columbia dismissed the suit, writing that its claims did not belong in a federal court. The union alleged that the District violated its members’ Fifth Amendment right to due process when it let them go. But Hogan found the case did not reach the standard of a constitutional dispute.

“Mindful of the Supreme Court’s admonition not to permit the Due Process Clause to ‘transform every tort committed by a state actor into a constitutional violation,’ this Court finds that Plaintiffs have failed to state any plausible claim for relief,” Hogan wrote.

The union first sued the District in August to stop the Department of Parks and Recreation from terminating about 165 workers as part of an effort to outsource its child care services to private providers. The D.C. Council voted unanimously to stop the department from contracting out the jobs. But the department ignored the vote on grounds that they were facing a budget shortfall.

In its suit, the union claimed District officials had created the shortfall as a pretext for the firings by moving funding away from the Parks and Recreations budget without the necessary council approval.

In his opinion, Judge Hogan found that while it was possible the officials had violated District law, the firings did not meet the constitutional standard of “shocking the conscience.”

The union’s lawyer, Donald Temple of Washington’s Temple Law Offices, said he “definitely” plans to refile his suit at the Superior Court of the District of Columbia.

“It’s wrong,” he said. “They’re clearly privatizing. They’re clearly violating the reduction in force laws. We just thought at least there was a hook on substantive due process.”

Sen. Max Baucus (D-MT) and Ways and Means Committee Chairman Charles Rangel (D-N.Y.) have filed new legislation to crack down on offshore tax evasion, and unlike an earlier bill, their version won't include a so-called blacklist of countries that are considered tax havens.

Sen. Carl Levin (D-Mich.) and Rep. Lloyd Doggett (D-TX) had filed the Stop Tax Haven Abuse Act, which would have created a list of foreign tax havens and given the U.S. Treasury Department new tools to impose sanctions on them. That bill set off a lobbying push by countries that didn't want to be included in the legislation. The National Law Journalwrote about the issue in June.

The countries on the list include Malta, which has hired Sonnenschein Nath & Rosenthal to help gain ratification of a tax treaty that calls for more transparency and reporting of financial transactions. Also on the list: British islands Jersey, Guernsey and the Isle of Man, which hired partner Linda Carlisle of White & Case, and the Cayman Islands. Cayman Finance, formerly the Cayman Islands Financial Services Association, has retained Quinn Gillespie & Associates. The countries have spent more than $800,000 collectively on lobbying.

The countries have been blunt about their preference for an earlier draft of the Baucus legislation. "Malta has no concerns about the Rangel-Baucus proposal," Ron Platt, a senior managing director at Sonnenschein who lobbies for Malta on the tax treaty, wrote in an e-mail Tuesday. In a statement released through Quinn Gillespie Wednesday, Cayman Finance Chairman Anthony Travers said he "commends Chairman Baucus and Chairman Rangel for developing legislation that concretely addresses the important issues of US tax avoidance while rejecting damaging 'list' approaches included in competing legislation."

That proposal seems to be the one with momentum and support from the administration. "This legislation fits well into the Administration’s dual-track strategy of improving our domestic tax laws while increasing global cooperation on tax information exchange to help narrow the tax gap and create the fairer tax system we need," Treasury Secretary Timothy Geithner said in a statement. "We have had great success recently in working with countries around the world to increase tax information exchange as part of the global effort to end offshore tax evasion." Geithner, who had previously praised the Levin-Doggett bill, went on to acknowledge their work "in support of a strong international tax enforcement agenda.” President Obama, too, issued a statement saying the Rangel-Baucus bill would meet his goal of cracking down on offshore tax evasion.

As for Levin, he issued a statement describing the Rangel-Baucus bill as "strong," but added that "When their committees move to markup, I hope to work with my colleagues to strengthen the Baucus-Rangel bill by adding some of the measures from the offshore tax bill I’ve introduced."

The U.S. Chamber of Commerce is launching a critique against those who borrow or lend money to pay for lawsuits, releasing a paper today on litigation financing written by three lawyers from Skadden Arps Slate Meagher & Flom.

Not to be outdone, the nation’s largest group of trial lawyers released a competing report today that highlights examples where they say companies knowingly put consumers’ health or lives at risk.

The dueling reports are likely to intensify the fight between the two major lobbying groups, which are competing for an edge among members of Congress. The plaintiffs’ bar is pushing several pieces of legislation that would expand opportunities for litigation; one top priority is to allow state torts against medical device manufacturers, while another is to prohibit mandatory arbitration provisions in consumer contracts and some other agreements.

The Chamber today is hosting its annual Legal Reform Summit in Washington. It features a keynoted address by former Florida Gov. Jeb Bush, a Republican.

Click here (PDF) for the Chamber’s report, “Selling Lawsuits, Buying Trouble,” by Skadden partners John Beisner and Jessica Miller and counsel Gary Rubin. Click here (PDF) for the report from the American Association for Justice, titled “They Knew and Failed To.”

The National Law Journal reported in 2007 on the growing number of cash-strapped plaintiffs who were then borrowing money to get by during litigation. This month, The AmLaw Daily reported on a new, $130 million British fund that plans to invest in U.S. commercial litigation and international arbitration.